UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-5208

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ABEL CASTILLO RANGEL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:95-cr-00486-CMH-4)

Submitted: September 15, 2011 Decided: October 26, 2011

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Kara Martin Traster, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

A federal jury convicted Abel Castillo Rangel of

conspiracy to possess with intent to distribute and distribute

marijuana, in violation of

(2006); possession

with intent to distribute marijuana, in violation of

(a) (2006); and distribution of marijuana, in violation of

(a). The district court sentenced Rangel to 121

months of imprisonment and he now appeals. Finding no error, we

affirm.

Rangel first argues that there was insufficient

evidence to support the convictions. We review a district

court’s decision to deny a Rule 29 motion for a judgment of

acquittal de novo. United States v. Smith,

(4th Cir. 2006). A defendant challenging the sufficiency of the

evidence faces a heavy burden. United States v. Beidler,

(4th Cir. 1997). The verdict of a jury must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

evidence.’” Smith,

(citations omitted).

Substantial evidence is “evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

(internal quotation marks and citation omitted).

2 Moreover, “[t]he jury, not the reviewing court, weighs

the credibility of the evidence and resolves any conflicts in

the evidence presented.” Beidler,

(internal

quotation marks and citation omitted). “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”

(internal quotation marks

and citation omitted).

In order to prove that Rangel conspired to possess

with intent to distribute and distribute marijuana, the

Government needed to show (1) an agreement between two or more

persons, (2) that Rangel knew of the agreement, and (3) that

Rangel knowingly and voluntarily joined the conspiracy. United

States v. Burgos,

(4th Cir. 1996) (en banc)

(citations omitted). However, “a conspiracy may be proved

wholly by circumstantial evidence,” and therefore may be

inferred from the circumstances presented at trial.

.

To establish possession with intent to distribute, the

Government had to prove that Rangel (1) knowingly, (2) possessed

the marijuana, (3) with the intent to distribute it.

. Possession can be actual or constructive and, “[l]ike

conspiracy, [c]onstructive possession may be established by

either circumstantial or direct evidence.”

(internal

quotation marks omitted).

3 Finally, to prove that a person distributed a

controlled substance, “the prosecution is obliged to prove that

(1) [the] defendant knowingly or intentionally distributed the

controlled substance alleged in the indictment, and (2) at the

time of such distribution the defendant knew that the substance

distributed was a controlled substance under the law.” United

States v. Alerre,

(4th Cir. 2005) (internal

quotation marks and citation omitted). We have thoroughly

reviewed the record and conclude that the Government presented

sufficient evidence of Rangel’s guilt of the offenses of

conviction.

Rangel next argues that the district court erred by

allowing a witness to testify to alleged hearsay statements of a

confidential informant, in violation of his right under the

Confrontation Clause of the Sixth Amendment. As Rangel failed

to object to this testimony at trial, this issue is reviewed for

plain error. See Fed. R. Crim. P. 52(b); United States v.

Olano,

(1993). To meet this standard,

Rangel must demonstrate that there was error, that was plain,

and that affected his substantial rights.

Moreover, even

if Rangel demonstrates plain error occurred, we will not

exercise discretion to correct the error “unless the error

seriously affect[s] the fairness, integrity or public reputation

4 of judicial proceedings.”

(internal quotation marks and

citation omitted).

“The Sixth Amendment to the United States Constitution

. . . provides that [i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.” Melendez-Diaz v. Massachusetts,

(2009) (internal quotation marks and citation omitted).

The Confrontation Clause “guarantees a defendant’s right to

confront those who bear testimony against him,” and, therefore,

a witness’ testimony is “inadmissible unless the witness appears

at trial or, if the witness is unavailable, the defendant had a

prior opportunity for cross-examination.”

(quoting Crawford

v. Washington,

(2004)) (internal quotation

marks omitted). However, “the [Confrontation] Clause . . . does

not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” Crawford,

n.9 (citing Tennessee v. Street,

(1985)). We conclude that the district court did not

plainly err in allowing the testimony regarding the confidential

informant’s statements because the statements were not offered

to prove the truth of the matters asserted.

Accordingly, we affirm the judgment of the district

court. We also deny Rangel’s motion to file a pro se

supplemental brief. We dispense with oral argument because the

5 facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED

6